Same-sex marriage: why the case against it is weak

Marriage equality is not a redefinition of marriage, let alone one that leaves marriage thinner than before. Rather it's grounded in a truer understanding of what marriage essentially is.

By Patrick Stokes

UpdatedJune 2, 2015 — 2.32pmfirst published at 12.19pm

As the same-sex marriage debate in Australia enters what looks to be a new and decisive phase politically, it's only fitting that we should hear a bit more from the "no" side. Indeed, same-sex marriage advocates should welcome pieces like Kevin Donnelly's recent contribution to The Age online, if only so people can see how tendentious the "no" argument really is.

There's plenty to criticise in Donnelly's argument, from the weak historical claims about how marriage has been understood in different cultures to the sleight-of-hand in claiming "the rise of single-parent families and the absence of biological fathers" has "coincided with increased rates of child abuse". Increased reporting does not entail increased occurrence, and correlation is not causation.

Arguments for same-sex marriage, such as were used in Ireland before its May 23 referendum, are more often a "why not?" rather than a "why?".Credit:Cathal McNaughton

Donnelly's assertion that recognising same-sex marriages involves a "category mistake" seems calculated to get philosophers' hackles up. It's like saying "if you define things as I define them, then other definitions are wrong" – trivially true, but it gives us no reason to accept the definition in the first place.

But Donnelly's argument, though bereft in empirical, historical, and philosophical terms, does indirectly show up a strategic disadvantage in the marriage equality movement.

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Opponents of same-sex marriage at least try to offer a "thick" conception of the good: a view of what sort of things matter, and an account of where marriage fits into that picture of the good life. It's a conception that is, I'd contend, fatally flawed, but at least they offer one.

Lurking in the background of Donnelly's argument, as with many Catholic critics of same-sex marriage, is a set of assumptions derived from the Natural Law tradition, stretching from Aquinas (who in turn drew on Aristotle) through to contemporary philosophers such as John Finnis and Robert George.

For these thinkers, marriage is a basic human good made up of two essential components: procreation, and "conjugal friendship". Nothing that lacks these components, in their view, counts as marriage. Anything that gets in the way of actualising this good is accordingly immoral.

"New Natural Lawyers" as a rule don't explicitly appeal to religion, but it's hard to disentangle their premises from the view that humans were created with specific purposes, such as raising children. And the idea we're "meant" to have children involves, at best, a fallacious appeal to nature (because what's natural isn't automatically morally good) and at worst a full-blown theological claim.

They also have to do some fancy footwork to explain why they're OK with infertile heterosexual couples marrying, and don't insist post-menopausal couples get divorced. Their usual response – that such couples are having sex of the procreative type, even if they are in fact infertile – looks more like convenient sophistry than a serious attempt to grasp the structure of moral reality.

Same-sex marriage, by contrast, is most often argued for in straightforwardly liberal/libertarian terms. It's more often than not a "why not?" rather than a "why?" argument. That's entirely understandable, but it makes it too easy for opponents to claim that changing the legal definition would somehow empty the idea of marriage of substantive meaning.

Yet proponents of same-sex marriage needn't cede the thick ground to the "traditionalists" by arguing their case on libertarian grounds alone. Marriage equality is not a redefinition of marriage, let alone one that leaves marriage thinner than before. Rather it's grounded in a truer understanding of what marriage essentially is.

Philosophers such as Richard Mohr have worked to articulate this substantive meaning of marriage. Mohr understands marriage as "intimacy given substance in the medium of everyday life, the day-to-day … the fused intersection of love's sanctity and necessity's demand". It's not legal language, but it captures a recognisable good at the heart of intimate human relationships. Marriage, as a legal status, recognises and responds to this reality.

[Philosopher Richard] Mohr understands marriage as 'intimacy given substance in the medium of everyday life'.

Consider the status we give to de facto couples – or as they're tellingly known in some jurisdictions, common law marriages. We give legal recognition to these couples because they are already living in just this sort of committed intimacy. In other words, they are marriages in substance if not in law.

This understanding of substantive marriage fits better with our other ideas about marriage. Childless marriages are still marriages, for instance, not because the partners are having the "right" kind of sex but because while child-rearing may be something partners in substantive marriages do, it is not constitutive of what they are.

But as Mohr argues, substantive marriage is neither essentially nor exclusively heterosexual. Once we see beyond hopelessly confused fallacious appeals to "nature", it becomes clear that same-sex relationships can embody this good just as fully as heterosexual ones. Plenty of same-sex couples are already substantively married; to deny them the recognition of marriage if they wish is therefore irrational and unjust.